Luận án tiến sĩ luật học: Bribery offences under Vietnamese criminal law in comparison with Swedish and Australian criminal law

From the criminal law perspective, studies such as Studying criminal liability for crimes relating to public positions, by Võ Khánh Vinh, 1996; Commentaries on the Penal Code of 1999, by

DAO LE THU

BRIBERY OFFENCES UNDER VIETNAMESE CRIMINAL LAW IN COMPARISON WITH SWEDISH

AND AUSTRALIAN CRIMINAL LAW

Speciality: International and Comparative Law

Code: 62.38.60.01

DISSERTATION

Supervisors:

1 Prof Nguyén Ngoc Hoa

2 Prof Per Ole Tréskman

HÀ NỘI- 2011

If one recently wonders about what kind of crime is of the greatest threat to the stability ofthe state and the economy, after organized crime, bribery would certainly also beconsidered Bribery and organized crime may even make a good combination to developwell together, because the former can support the latter and vice versa One must beconcerned that many of those responsible in state and society close their eyes to the factthat the line between organized crime and bribery appear to be shifting or they even helpsmooth the way for this to happen.

Through media coverage we are told about bribery practices throughout the world.Breaking news often includes stories of bribery in both the national and internationalcontext Bribery cases receive much attention and concern from politicians, legalpractitioners and citizens It is worth keeping in mind that unlike other dangerousphenomena, bribery is an internal danger As one perceives such phenomenon has risen insociety as an “enemy within,” or like a “cancer,” that can undermine the trustworthiness ofstate and societal decision-making processes and, thereby, not only damages specifically

affected individuals and institutions, but has the ability to destroy the entire structure of

state and society (Eser 2003: Preface)

The threat has been recognized for decades, especially so far as concerns the stability ofthe state For a long time, developed countries have embraced policies and launchedcampaigns against corruption, including bribery These activities have just started in thedeveloping countries; however the perception and determination there are still different tosome extent There have been attempts to address it by way of criminal law and by otherprograms and measures in different arenas Of course recourse to criminal law may not bethe optimal solution but it is necessary in regard to the gravity and current situation ofbribery As a researcher I see the need to use criminal law as an essential tool and I alsoidentify the difficulties posed by and the problems with such use These encourage me tostudy bribery from a criminal law point of view

This study is essential result of my PhD studies for over four years within the JointDoctoral Program of International and Comparative Law between Hanoi Law University

whom I am indebted It is impossible to acknowledge all these persons by name First ofall, I would like to express my general gratitude to the members of the Faculty of Law atLund University | would like to thank specifically the persons who have particularlymade invaluable contributions to my research I am deeply grateful to Assoc Prof.Christoffer Wong who has taken an interest in my research, introduced me to relevantresearch and provided advice and comments that made my research process enlightened.

1 would like to give my special thanks to Asst Prof Bengt Lundell and Prof ChristinaMoél who have throughout the years provided help, encouragement and sympathy |must not forget the help provided by the Faculty Library I would also like to thank MyDung Ho, a master student at the Faculty of Law for her translation into English of therelevant part of the commentaries on the Swedish Penal Code, including several cases,this due to the fact that I cannot read Swedish

Next I would like to thank the professors participating in the three prolongation seminarsfor evaluating my research over the last four years and from whom I received manythoughtful and helpful comments and suggestions Especial thanks must be given toProfessor Lé Thi Son and Assoc Prof Christoffer Wong

In addition, people at the other academic institutions I have visited during the course of myresearch have been very kind and helpful It was my great honour to be a visiting fellow inthese institutions, enjoying wonderful research environment and obtaining a good outcomefor my own work In particular, thank so much to the professors, staff and librarians at theMax Planck Institute for Foreign and International Criminal Law in Freiburg, Germanyand at the Faculty of Law of New South Wales, Australia for providing me with help andresearch assistance I wish to especially express my gratitude to Professor Jill Hunter,Christopher Lemercier, Robyn Bennett-Healy and Thuy Van Nguyen to whom I amindebted not only for help in doing research but also for caring for me during the time |was at the Faculty of Law of New South Wales Furthermore I had the chance to interviewand discuss matters with wonderful and kindhearted people while doing this study.Professor Madelene Lejonhufvud who used to be chairperson at the Swedish Instituteagainst Corruption and professor at Stockholm University is a person I will never forget

Sweden (National Council of Crime Prevention) for giving me some information about thesituation regarding bribery in Sweden and for providing me with statistics It was also agreat honour to meet with Justice Rod Howie of the Supreme Court of New South Wales,Deputy Director of Public Prosecutions Commonwealth Jolliffe Jim and David Wong, anofficer of the NSW Police Integrity Commission, receiving answers from each of theminvolving bribery criminal law and bribery practices of Australia Thank you so much forthese meaningful meetings.

| am also grateful to SIDA (the Swedish International Development Agency) and its

“Strengthening Legal Education in Vietnam” project for financing my research Especialthanks go to Associate Professor Bengt Lundell, Associate Professor Lars-Géran Malmberg,Professor Lé Hồng Hạnh, Professor Lê Minh Tâm and Professor Lê Thị Sơn for theirsupport during my research In addition, I am grateful to the competent people at theFaculty of Post-graduate and the Department of International Co-operation of Hanoi LawUniversity and at the Faculty of Law of Lund University for helping me with proceduresfor going abroad, housing and other practical matters

I would also like to deeply thank Hanoi Law University for providing me the facilities fordoing research during over last four years My gratitude also needs to be expressed to mycolleagues at the Faculty of Criminal Law of Hanoi Law University for theirencouragements and help during the time I was doing my thesis I must thank so muchpeople at Vietnamese legal agencies and institutions such as the People’s Supreme Court,the People’s Court of Hanoi, the National Institution of State and Law, etc., who provided

me with relevant information, statistics, judgments and materials

The persons to whom I am most grateful are naturally my supervisors, Professor Per Ole

Traskmän of the Faculty of Law at Lund University and Professor Nguyễn Ngoc Hòa of

Hanoi Law University As supervisors, they not only gave me instructions and suggestionsbut also encouraged me to develop ideas myself Professor Per Ole Traskman even helped

me with checking a translation of the Swedish Penal Code and other Swedish legaldocuments concerning my research, additionally arranging meetings for me with experts

completed my research without their help and encouragement.

Finally, my friends and my family have contributed the greatest and warmest support andencouragement Thank you my fellow doctoral candidates and also my friends for help andchat, cheering me up whenI felt sad or pessimistic and discussing idea with me when I wasstuck My special gratitude is given to my best friends (and also my colleagues) at the

Faculty of Criminal Law of Hanoi Law University Dr Nguyén Tuyét Mai and Dr Duong

Tuyét Mién who not only encouraged me but also helped me both by assisting my research

and sharing my difficulties I would like to express from the bottom of my heart mygreatest indebtedness to my mother, my sister, my parents in law and, above all, myhusband and children who shared with me the difficulties and the happiness I have thegreatest sympathy for them on account of my spending so much time on doing researchinstead of taking care of them This study is dedicated to you all

It is necessarily to say in this Preface that I bear sole personal responsibility for the ideasand arguments presented in this thesis

Hà Nội, 14 January 2011

Le Thu Dao

[Dao Lé Thu]

List of Abbreviations

Introduction

Chapter 1 General Issues relating to Bribery Offences

1.1 Theoretical Issues relating to Bribery Offences

1.1.1 The Concept of Bribery Offence

1.1.2 Prevailing Types of Bribery

1.1.3 Theories concerning Bribery Offences

1.2 Bribery Offences as approached by International Criminal Law Standards

1.3 General Conclusions

Chapter 2 Bribery Offences under the Criminal Law of Vietnam compared

with the Position in Swedish and Australian Law

2.1 Bribery Offences under the Vietnamese Penal Code

2.1.1 Elements of Bribery Offences

2.1.2 Preparation, Attempt and Complicity regarding Bribery Offences

2.1.3 Criminal Sanctions and Measures for Bribery Offences

2.2 Bribery Offences under Swedish Criminal Law

2.2.1 Elements of Bribery Offences

2.2.2 Some Special Criminalized Types of Bribery

2.2.3 Uncompleted Offences and Complicity

2.2.4 Criminal Sanctions and Measures

2.3 Bribery Offences under Australian Criminal Law

2.3.1 Australian law on bribery offences in general

2.3.4 Attempt, Conspiracy and Complicity

2.3.5 Criminal Sanctions

2.3.6 The offence of corrupting benefits given to, or received by, a

Commonwealth public official

2.4 Comparative Analysis

Chapter 3 Practical Issues concerning Bribery Offences in Vietnam

-Comparing with Sweden and Australia

3.1 Current Situation of Bribery Offences in Vietnam - Compared with the

Situation in Sweden and Australia

3.1.1 Current Situation regarding Bribery Offences in Vietnam

3.1.2 The Recent Situation concerning Bribery Offences in Sweden and Australia

3.1.3 Comparative Analysis

3.2 The Application of the Vietnamese Criminal Law on Bribery Offences

-Compared with that of Sweden and Australia

3.2.1 The Application of Vietnamese Criminal Law on Bribery Offences

3.2.2 Experiences of the Application and Interpretation of Criminal Law in

Sweden and Australia

3.2.2.1 The Swedish experiences

3.2.2.2 The Australian experiences

3.2.3 Comparative Conclusions

Chapter 4 Recommendations for the Vietnamese Criminal Law on Bribery

Offences and Its Application

4.1 Guiding Principles for Recommendations

4.2.1.1 Recommendations concerning the offences

4.2.1.2, Recommendations concerning penalties and other criminal measures

4.2.2 Recommendations for the Interpretation and Application of the Criminal

Organization for Economic Cooperation and DevelopmentParagraph

Project Management Unit

Swedish CrownsSwedish International Development Cooperation AgencyUnited Kingdom

United NationsUnited States of AmericaUnited States CodeThe Central Committee of Internal Affairs of Vietnamese Communist PartyVietnamese Communist Party

Vietnamese Commission of Legal Education and Propaganda of GovernmentVietnam Dong

The protection of government and their public officials from corruption has recently beenunder consideration all over the world Every state is aware that the stability andtransparency of government are essential factors to secure State’s development andcitizens’ lives and property, to ensure the rule of law and to get the public’s trust ingovernment In order to maintain the security of society, public fairness and officialresponsibility before the law, public officials need first and foremost to be free fromcorruption However, the world now has to confront with the seriousness of the problemsand threats posed by corruption Corruption is a high-profile issue of all countries, bothdeveloped and developing Corruption-related activities have occurred with increasingly

high frequency that is affecting the stability and security of societies, damaging the

institutions and values of democracy, ethical values and justice and putting danger tosustainable development and the rule of law Moreover, the links between corruption and

other forms of crime - especially organized crime and economic crime - are found around

the world In addition, corruption has made many public officials become degenerate As a

result, they misuse of official powers that harm both individual and the public for improperbenefit Furthermore, corruption is now not only a national problem but also a trans-

national phenomenon, making all societies worried.

Recently, there have been more and more cases of corruption Corruption cases are seen as

disasters “that involve vast quantities of assets, which may constitute a substantial

proportion of the resources of States, and that threaten the political stability and sustainable

development of those State”.' Corruption is still rampant in 70 countries, says Corruption Perceptions Index (CPI) 2005.? Moreover, more than two-thirds of the 161 nationssurveyed in Transparency International’s 2006 CPI scored less than 5 out of a clean score

of 10, indicating serious levels of corruption in a majority of the countries surveyed

' Preamble of the United Nations Convention against Corruption

? At: http://www.transparency.org The CPI measures the perceived level of public-sector corruption indifferent countries and territories around the world The CPI can be considered a survey of surveys because it

is conducted based on different expert and business surveys The higher the score that a country obtains, the cleaner the government is deemed.

Despite progress on many fronts, including the imminent entry into force of the UnitedNations Convention against Corruption, 74 countries, nearly half of those included in theIndex, scored less than 3 on the CPI, indicating a severe corruption problem On this CPI,Vietnam is in the 111" position and scored 2.6.

At the moment, there is a notion that “the prevention and eradication of corruption is aresponsibility of all States”.” This means that we should use various and effective measuresand policies to prevent and control corruption, including the recourse to criminal law AnOECD official states, “Governments have understood that it deserves to be a criminaloffence This is a point worth underlining Governments have recognized bribery as acrime for a good reason - because of the tremendous harm it causes” (Grurria 2006)

As many other countries, Vietnam has been engaging in activities that show a determination tocombat and control corruption For instance the Government signed the United NationsConvention against Corruption on 10” December 2003, joined the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific in June 2004, enacted the Act on thePrevention and the Fight against Corruption on 28" November 2005 and ratified the UnitedNations Convention on 19 August 2009

However, Government anti-corruption efforts remain predominantly dependent on national affairs and discussions The situation of corruption in Vietnam is alarming and bribery offences are worrying society The situation regarding such offences is complicated and dangerous A number of bribery offences involving high-ranking officials, including those

in judiciary have recently been committed and people are losing their trust in public

officials’ impartiality and fairness Bribery has nowadays been spreading into many fields

of society, such as trade, construction, finance, sport, education, the judiciary, medicineand so on Some high-ranking officials in Vietnam have been convicted of committingbribery offences but many others, in spite of being discovered by the media or investigated,were not convicted and this for many reasons Bribes hide behind many kinds of namesuch as gift, reciprocity, graft, payoff and kickback This becomes one of the obstacles inthe fight against bribery It must be said that the Vietnamese people’s perception of bribery

is still unclear as well as negative So far as Vietnamese legal practitioners are concerned,the criminal provisions concerning bribery are neither adequate nor clear too

? Preamble of the United Nations Convention against Corruption

In order to make my own contribution to the fight against corruption, this research wishes

to resolve some problems concerning bribery offences from criminal law point of view,which are, indeed, the subject of this study The topic “Bribery offences under Vietnamesecriminal law in comparison with Swedish and Australian criminal law” needs to be studiedfor the following reasons:

First, Vietnam as well as Sweden and Australia, despite many differences in politics, economicdevelopment and culture share the consideration of bribery problems These countries areaware of the necessity of preventing and fighting bribery They all consider that one of theessential instruments to prevent and control bribery is the criminal law The approaches ofthese different countries on bribery should be analyzed and compared, because the resultwill help Vietnam reinforce and strengthen its penal system as it applies to bribery

Secondly, bribery is subject to criminal law liability in Vietnam as well as in Sweden andAustralia Sweden and Australia have, to a considerable extent, succeeded in controllingbribery through criminal law In other words, Swedish and Australian criminal laws havereally acted as an effective instrument to prevent and limit bribery Whereas Vietnamstill has difficulties in applying criminal law to bribery offences and the enforcement ofthe law is inefficient and inadequate Some of the reasons can be attributed to the lack of

clarity in and shortcomings of the law on bribery Therefore, our criminal law needs to beclarified and improved

Thirdly, in Vietnam the fact that practices such as receiving bribe and giving bribe have

been growing These activities make people doubt the transparency of the government.However, in spite of the increase of bribery, few cases involving bribery are punishedthrough the criminal law We can therefore say that there is a big difference between thequantity of bribery activities and the number of convictions for bribery offences This factrequires us to find problems for it relating to criminal law and their solutions

Fourthly, among different kinds of corruption, bribery can be considered as a very

“traditional” and typical form It is also a pervasive and complicated illegal act nowadays.Indeed, using criminal law to control bribery is not a new phenomenon in Vietnam,Sweden or Australia However, little research has been performed on this topic There areonly a few historical and sociological books, commentaries and articles, regarding one or

more issues regarding bribery Most of these materials only mention current criminal laws

in general Finally, they mainly focused on the domestic bribery law

The above-mentioned facts become reasons for studying and understanding bribery in thelight of criminal law and though a comparative approach The actuality of the subjectreflects the needs of society and this in turn is based — internally — on the perception ofbribery as a problem to be dealt with by criminal law and the state of the existing law; and

— externally — whether there is a need of compliance with international commitments.Based on bribery issues seen from both internal and external aspects, the current situation

in Vietnam very much warrants its being studied of bribery in a doctoral thesis

Why does the author choose Swedish and Australian criminal laws as other penal systemsjor this comparative research? First, these laws belong to different legal families TheVietnamese legal system is rooted in the civil law tradition In contrast, Australian law is atype common law The Swedish system belongs to the civil law family, but it shares somecharacteristics with a precedent-based system This all attracts comparative lawresearchers The way of dealing with complex matters in bribery cases by way of case law

in addition to legislation is something Vietnam also needs to study Secondly, although in

different continents, Sweden and Australia are both good examples of controlling corruption and bribery In the Transparency International’ Corruption Perceptions Index of

2006, Sweden scored 9.2 and ranks at 6", Australia scored 8.7 and ranks at 9” These veryimpressive results showed the effectiveness of the fight against bribery waged by the twocountries So comparative research on Vietnamese law with Swedish and Australian laws

on bribery and studying the way they apply their laws to prevent and combat bribery seemsboth necessary and meaningful for Vietnam

Aims of the Research and Research Questions

The main aim of this research is to examine and make comparative analyses of the laws ofthe three countries on bribery offences The discussion, based on the theories relating tobribery offences and the current law of the three countries, is to find out why it issometimes difficult to punish bribery by way of the criminal law Next, aim is to givesuitable suggestions for dealing with difficulties in interpreting and applying the criminal

law on bribery In addition, the research will also highlight a number of shortcomings of

the law in question and make a number of recommendations for improving Vietnamese

legislation The comparative aspect of the research should locate and provide useful

legislative experience from Sweden and Australia which Vietnam can apply when revisingits criminal law on bribery

In order to obtain all the purposes, the research will concentrate on solving some majorquestions First, what is bribery from international and different national points of view?Second, what does bribery look like under present international and national criminal law?Third, what is the situation regarding bribery in Vietnam in comparison with what it is inSweden and Australia? Fourth, what are the difficulties of applying Vietnamese criminallaw on bribery and what are the experiences of Sweden and Australia in the matter?Finally, what are the solutions recommended for the shortcomings and obscurities in theVietnamese penal law on bribery?

Delimitation

The thesis presents a study on bribery offences from a criminal law perspective As itbelongs to the field of comparative criminal law, the thesis will go deeply into the three

criminal law systems relating to bribery offences and then compare them.

There are many issues concerning bribery However, in the scope of this thesis, the analysis will mainly focus on bribery-related offences in terms of the law on such offences Some criminological issues will be addressed, such as the situation and causes of bribery

offences The purpose of presenting such issues is to examine the role and effectiveness ofcriminal law in connection with the situation of bribery in the countries compared Thisthesis will of course focus on theoretical and practical issues of bribery in respect ofVietnamese, Swedish, and Australian criminal law

Some interesting but not immediate topics relating to the offences, such as theinvestigating techniques and public reaction will be left out In other words, many aspects

of criminology and procedure will not fall within the scope of the research

The subjects of comparison in this thesis will be Vietnamese, Swedish and Australianbribery criminal law Accordingly, the analysis will focus on such criminal law systems

Furthermore, because Vietnam, Sweden and Australia have signed or ratified certainInternational Conventions on bribery, these legal instruments wil! also be considered.

Literature review

Bribery is a not new phenomenon Bribery offences can be regarded as traditional crimes

as they have long been are provided in criminal law Consequently, such offences shouldhave been much studied by researchers Moreover, bribery has become more complicatedand more dangerous recently which also requires researchers to pay attention to thephenomenon However, research concerning bribery in terms of criminal law seems to belacking Whereas quite an extensive literature exists on the question of corruption ingeneral, the issues concerning bribery in particular have not received as much attention It

is therefore possible to make some real contribution to scholarship in this area

In Vietnam there were very few criminal law researches concerning bribery offences.Moreover such offences were only viewed from the standpoint of Vietnamese criminal lawOnly In addition, these researches mainly considered corruption in general, not going

deeply into bribery offences Furthermore, most research on bribery offences in Vietnam took a criminological approach Some notable research (books, text books, articles) can be

referred to here From the criminal law perspective, studies such as Studying criminal

liability for crimes relating to public positions, by Võ Khánh Vinh, 1996; Commentaries

on the Penal Code of 1999, by Legal science Institute - Ministry of Justice, 2004 and Textbook on Vietnamese Criminal Law of Hanoi Law University, Book 2, 2005 mention

bribery offences among other crimes relating to public positions However these researches

do not analyze cases (applications of the law) of bribery From a criminological viewpoint,such researches as Situation, Causes and Solutions to prevent and combat corruption crimes,

Doctoral Thesis by Tran Công Phan, 2004 and Modern Criminology and Prevention of Crime, by Nguyễn Xuân Yém, 2001 did present and analyze issues concerning corruption ingeneral and bribery in particular However, it seems that practical issues relating to briberyoffences occurring in Vietnam received insufficiently concern and attention

In regard to bribery in an international context, there are several books that considercorruption in general and bribery in particular, for instance “Bribes” by John T Noonan,

Macmillan Publishing Company, New York 1984; Corruption: Its Nature, Causes andFunctions by S H Alatas, Avebury Gower Publishing Company Limited, 1990;

“Corruption and Government - Causes, consequences, and reform" by Susan Ackerman, Cambridge University Press, 1999; Explaining Corruption by R William ed.,Edward Elgar Publishing Limited, 2000; “Fighting corruption in Asia - Causes, Effectsand Remedies” by John Kidd and Frank-Jurgen Richter editors, World ScientificPublishing Co Pte Ltd, 2003 and “Corruption and good Governance in Asia” byNicholas Tarling (ed), Routledge, 2005 However, these researches focus on suchphenomena in the light of criminology and sociology Materials looking at it in the light ofcriminal law are very few Some studies at international level such as The OECDConvention on Bribery — A Commentary by M Pieth, L A Low and P J Cullen, eds.,Cambridge University Press 2007 focus on international instruments relating to bribery;some others mention national law, including Swedish and Australian law A studyconcerning criminal law on corruption of Vietnam in comparison with German criminal

Rose-law conducted by Tran Hữu Tráng in 2008 with the tiltle “Korruption im Bereich von

Amtstatigkeit Ein strafrechtlich-kriminologischer Vergleich zwischen der BundesrepublikDeutschland und der Sozialistischen Republik Vietnam” also paid attention on the concept

0Í corruption offence, elements of corruption offences under the two penal systems and

some issues of criminology regarding corruption offences But approaching briberyoffences from the criminal law perspective can be said to be inadequately done

Reviewing studies regarding bribery, one sees that doing research on bribery offences from

a mainly criminal law approach, though coupled with some criminological issues inVietnam, is still going to be useful Comparative analyses in relation to international andforeign theories and law will make the research both globalized and objective

Materials and Methods”

As noted above, there has not been much previous consideration of this topic The material

is therefore limited This is an analytical treatment of the limited amount of materialcontained in the foregoing studies, being a study focusing on legal instruments addressing

*# For the description of the methods have been used in this thesis I mainly based myself on the study

“Methods in legal research” by Lidgard, Hans Henrik et al (2006) in the Document of Research Methodology for Joint Doctoral Program at Faculty of Law of Lund University in 2006.

the topic questions The resources used will mainly encompass law (such as Penal Codes),Government Bills, and Reports on bribery, including relevant legal documents from theUnited Nations, the OECD and the Council of Europe More literature was collected fromVietnamese, Swedish and Australian law journals and other periodicals will also be used.

The main aim of this thesis is to examine the law of the three relevant countries on briberyoffences; the regulation—oriented approach is thus applied along the lines of traditionallegal method Accordingly, legal points of view, the current law on the phenomenon andtheir problems are studied mainly through the analytical method Historical legal method isalso used somewhere in order to show the relationship between current and earlierlegislation Additionally, the conclusion and some summaries or general evaluations of thelaws on bribery offences are presented through the synthetic method

Other methods are further used including the law and philosophy method, the law andpolitics method and the law and sociology method, all in order to analyze and explain thecontext in which bribery offences appear and develop, to justify the need of using criminallaw for combating bribery and to explain why bribery has been regulated with certainrequirements and in a certain manner Moreover, empirical studies are referred to find outthe main reasons for the difficulty in applying the criminal law on bribery Some

practitioners and agencies (e.g judges/courts) are consulted to assist in the matter of law application The data were collected from empirical studies and reports of competent authorities The collected data was then classified and processed to comprehend analysis of

the situation of bribery offences and the question of applying criminal law to bribery.Finally, because this research is a comparison between Vietnamese, Swedish and Australianlaws, the similarities and differences between the three criminal law systems on the topicare reviewed by the comparative law method This method becomes one of the mainmethods used in the thesis This is obviously the case for the comparison between Vietnamand Australia and Sweden - this being a comparison between different national legalsystems As for the international conventions, that is, the United Nations Conventionagainst Corruption, the European Union Convention on the fight against corruptioninvolving officials of the European Communities or officials of Member States, theCouncil of Europe Criminal Law Convention against Corruption and the OECD Convention

on Combating Bribery of Foreign Public Officials in the International Business

Transactions are concerned, the degree of compliance of national law with theseinternational instruments is also viewed through a comparative approach By comparativemethod, the compliance of Vietnamese law with relevant conventions can be clearly seen.Moreover, the similarities and differences between Vietnamese law and other comparativelegal systems are also pointed out and explained Finally the results of comparativeanalyses are used in providing recommendations for Vietnamese law in dealing withb:ibery offences The comparison of law made by comparative method shows the fact thatthere is not a perfect criminal law on bribery offences in every country in this study.Vietnamese criminal law on bribery has its reasonable and suitable provisions Thereforeusing comparative method does not mean to support all similarities and to criticize alldifferences Comparative analyses suggest Vietnam should not learn everything from othersystems or copy bribery law of other countries.”

The foreign and international part of the thesis, as well as the theoretical part, is basedmainly on material written in English Most of the information on the law is obtainedthrough legislative texts, conventions, preliminary and explanatory reports as well as somemonographs and journal articles I have included materials about Swedish law that are not

available in English, including commentaries on the Penal Code and some of the case law These are materials that I have access to through a translation by a Swedish law student and through a meeting with Professor Madelene Lejonhufvud who is the writer of the bribery offences part of the Commentaries on the Swedish Penal Code Professor Per Ole

Traskmän of the Faculty of Law at Lund University as my supervisor has confirmed and

controlled the Swedish material The reliability of what I have gained via such material is

also confirmed by some official reports mentioned in the thesis

As for the Vietnamese material, a large number of actual cases have been mentioned in

Chapter 3 on factual issues relating to bribery in Vietnam There is no doubt that there

should have been a systematic search of all bribery cases in Vietnam but it was impossible

to do this due to relative lack of public access and the sensibility of the issue I have tried

to collect as many cases as possible, especially ones occurring in big cities such as Hanoi

* | wrote an article discussing deeply on the topic of comparative criminal law See Dao Lé Thu (2008), “The

role of comparative law in legislating criminal law of Vietnam”, Jurisprudence Journal (1), pp 54-58.

TRUNG TAM THONG TIN THU VIỆN TRUONG BAI HOC LUAT HA NOI PHÒNG o9¢ L{ A, |

and Ho Chi Minh because these are often high-profile ones However that is not the mostimportant criterion for selecting cases The main criteria have been used for selecting suchcases are their typicality for illustrating the situation of bribery and the successes as well asweaknesses of the application of the law I have to admit that some cases came to myattention by chance For the cited cases I have done research at different levels For caseswhere I could obtain the indictment and the judgment, information came directly fromthese For others that | had access to by internet sources, I had summaries of the cases andtried to cross-check the information The internet sources that I used are all official sites inVietnam It should be noted the use made of the information presented in these internetweb sites is permitted by the Vietnamese Government.

Overall Structure of the Study

The structure of the thesis is presented in the logical form of background — problemand current law — practical experience —- empirical facts and causes of deficiencies —recommendations for solutions

An introduction to the thesis briefly presents the research It focuses on problems ofbribery offences from a criminal law point of view that need to be studied, the purposes of

the study and the methods used in doing the research.

After the Introduction, Chapter | takes as its point of departure of both theoretical andpractical issues relating to such offences In the first chapter, I argue that the understanding

of bribery offences in the light of criminal law is related to four main issues, namely theidea that the concept of bribery is perceived as a kind of corrupt offences, which should beunderstood in a modern and broad way to include bribery in the private sector, bribery offoreign public officials and some other types in regard to gift-giving; the idea that thecriminalization of different types of bribery is dependent on social attitude towards thephenomenon, culture and the need to protect values concerning not only governmentsystem but also private interests; the idea that some elements of bribery offence such as thebribe and the bribe recipients need to be broadened to meet modern concepts of bribery;and lastly to this is the idea that the policy of punishing bribery offences needs to beflexible for ensuring both the sufficient severity to prevent and combat such offences andadequate lenient to encourage offenders to voluntarily report crimes, due to the fact that it

is very difficult to find evidence in bribery cases Chapter 1 also addresses issues of bribery

as approached by intemational law to strengthen the theoretical issues and in addition to

afcresaid issues to establish a framework for later analyses and comparison

In Chapter 2, | examine the existing criminal law of Vietnam regarding bribery offences incomparison with that of Swedish and Australia The chapter not only presents the law butals) examines whether Vietnamese as well as Swedish and Australian law is compatiblewith theories and in conformity with international obligation I have used the moderndefinition of bribery offence to analyze the present law and the interpretation of the law onbribery In the second chapter, the scientific presuppositions laid down in Chapter | aredenonstrated In this part I also discuss perceptions of current law Through reviewingVietnamese, Swedish and Australian criminal laws on bribery offences, I find thecorfirmation of the theories mentioned in Chapter 1 Domestic laws on bribery indicatecorsiderable consistency with relevant criminal law theories In addition, the criminal law

of zach of the three countries provides for elements of bribery offences that are very

similar to international standards under the relevant Convention There is no doubt that

what is required by these Conventions e.g the criminalizing of prevalent types of bribery, the elements of the offences, the nature and coverage of such concepts as ‘public official’,

‘bribe’ and so on, are fulfilled by each country’s law.

In the third chapter, the situation of bribery as a factual problem is investigated The main

causes of such offences are also discussed It is argued that there is a link between public attitudes to bribery and the degree of its prevalence and this matches the situation of bribery in the three countries Through empirical studies and a comparative approach it has been shown that Vietnam, Sweden and Australia share the situation of bribery that a low

level of bribery activities leads to convictions in comparison with other areas of crimes

Reviewing the situation of bribery offences in these countries one sees that almost

prevalent types of bribery occurred The most frequent type which leads to convictions isbribery in the public sector Bribery of a normal and petty nature was more likely to beconvicted while political or high-profile cases were rarely proven guilty or came to light.The existence of hidden bribery offences could be the case in each of these countries.Accusations of bribery may be politically motivated This situation proves what waspresumed in the theoretical discussion The three countries share similar problems in theenfcrcement of bribery criminal law which could lead to bribers and others discounting the

risk of being punished One more similarity shared between these countries is that the low levzl of convictions of bribery may due to the ambiguity of the bribe or the definition of the bribe recipient The situation of bribery offences in Vietnam, including the problems of

hidlen offences, is much worse than that in Sweden and Australia Among the threecountries, the Vietnamese model of bureaucratic administration and the dependence oflower authorities on higher ones can be taken as two of the key causes of bribery there ForVietnam it is apparent that bribery is mainly caused by policies and institutionalmechanisms that created a high level of official independence and greed By contrast,Sweden and Australia are successful in fighting bribery by openness and transparency

This chapter also addresses the issues of the application of the law Because case law is notrecognized in the Vietnamese legal system, I have to deal with cases of bribery as matters

of tie application of law This means that this part presents the way law is interpreted andapplied in fact Examining the issues in question, there is no doubt that the application ofthe law on bribery offences in Vietnam, Sweden and Australia does obtain good resultsthough to different extents The three countries share some difficulties and weaknesses in

their law enforcement and judicial functions Factual presentations show both the effisiency and the inefficiency of the law as well as the functioning of legal practitioners Having once considered the weaknesses of Vietnamese criminal law and law enforcement

authorities in practice as well as the experiences learnt from Sweden and Australia,Viemam may overcome these difficulties and improve its criminal law in the fight againstbribery offences while also making its law enforcement more effective

Based on the analyses in the previous chapters, Chapter 4 gives recommendations for therevision and application of Vietnamese criminal law Before giving particular recommendations,

I present some guiding principles as prerequisites for my recommendations In this chapter Ipresent systematic and overall recommendations for amendments to and the interpretation ofthe criminal law on bribery Such proposals and solutions are made in the light of relevanttheor:ies and in compliance with the Conventions regarding bribery offences In addition, myreconmendations express the current need for revision and interpretation of the law Onesees that the recommendations given here are the obvious results of the arguments, analysesand comparisons made in the course of the research Finally, a few remarks have been added

as a ‘inal conclusion to the study as a whole

CHAPTER 1GENERAL ISSUES RELATING TO BRIBERY OFFENCES

1.1 Theoretical Issues relating to Bribery Offences

1.1.1 The Concept of Bribery Offence

The core concept of this research is, of course, the bribery offence However, in order tocarry out in-depth analyses of different theoretical approaches to the concept ‘briberyoffence’, the phenomenon of bribery itself should be discussed as well The concept ofbribery as a phenomenon has been studied from various perspectives, including politicsand sociology (Noonan 1984, Michell 1996, Rose-Ackerman 1999, Andersson 2002,Lennerfors 2007); economics (Arvis and Berenbeim 2003, Lambsdorff 2007); criminology(Van Duyne 1996, Reid 2000, Tran Công Phan 2004, Green 2006); and criminal law(Lanham 1987, Võ Khanh Vinh 1996, Bogdan 2002, Leijonhufvud 2003) Bribery has beenaddressed in numerous legal instruments and academic publications over a long period,though it is usually approached by way of the broader concept “corruption”

Afi issue needs to be resolved is the difference and the relationship between corruption and

bribery Studies indicate that bribery is the most typical and serious type of corruption Insome research projects the concept of corruption and the concept of bribery are understood

as essentially the same In other words, the term ‘bribery’ is considered as another namefor corruption and vice versa (Van Duyne 1996, Rose-Ackerman 1999, Heidenheimer

1998) However, corruption is generally perceived as a broader concept A traditional and common definition of corruption describes corruption as “behaviour which deviates from the normal duties of a public role because of private-regarding (personal, close family,

private clique) pecuniary or status gains; or violates rules against the exercise of certaintypes of private-regarding influence” (Nye 1967: 419) Studies show that the core ideaunderlying most contemporary definitions is that corruption involves the use of publicoffice for private gain (Nye 1967; Della Porta and Vannucci 1999; Tran Công Phan 2004).

In the legal sphere, corruption is often used as a name for activities such as misuse ofpublic office, embezzlement, bribery (Nye 1967: 966; the US Department of Justice) Forexample according to the Department of Justice of the United States, the abuse of public

offce (corruption) includes offences such as bribery, extortion and conflict of interest.°Frcm this point of view, bribery is a type of corrupt practices Other authors share the viewtha corruption encompasses more than bribery (Johnson and Sharma 2004) albeit bribery

is cne of clearest and most obvious types of corruption (Andersson 2002: 51)

In Vietnamese studies, the perceptions of corruption and bribery do not seem verydiferent Tran Céng Phan (2004:8) in his dissertation on corruption considers that

coruption can be seen from moral, economic and political aspects He concludes that fromthe moral point of view, corruption is immoral action; from the economic view it is theputlic official’s misuse of public authority in economic area, and from a political (stateand law) approach, corruption is attributable to the misuse of state power for private gain.However, almost all Vietnamese authors consider corruption and bribery as separateconcepts though they are thought to be related to each other Corruption is understood asthe abuse of public office activities committed by public officials, while bribery can be

committed by both public and non-public officials (Võ Khanh Vinh 1996; Trần Công Phan 2004; Dinh Văn Qué 2006) Accordingly only active bribery (giving bribes) falls within

the scope of the concept “corruption” The definition of corruption thus does not entirelycover the concept ‘bribery’

The nature of bribery can be seen from various aspects From the social point of view,

britery is considered as a deviant form of reciprocity “Bribes are species of reciprocity.Human life is full of reciprocities The particular reciprocities regarded as bribes in

partcular cultures are distinguished by intentionality, form, and context” (Noonan 1984: xiii’ Accordingly, bribery can be seen as a negative social phenomenon, perhaps a

misuse of good traditions or customs from the past, such as gift-giving or gratitudetradition The wrongfulness of bribery may not be perceived or may be perceived to adifferent extent, much depending on the culture and traditions of each society The

perception has its impact on the policy to bribery and affects the law on bribery This

should be taken into account when making law on bribery Further, when talking aboutthe moral wrongfulness of bribery, Green introduces his “disloyalty - based theory” onbribery which shows that the bribe recipient is disloyal to his constituents and to the

° See Sourcebook of criminal justice statistics, available at http://www.albany.edu/sourcebook

ideals of his job, even in the case of accepting a bribe to do the right thing (Green 2006:

20'-211) This theory seems similar to the former notion of other authors when they

pomted out the betrayal of trust as a condemnable and critical feature of bribery (Noonan

1984; Alatas 1999) Bribery is therefore condemnable disloyalty from the moral point ofview The nature of bribery seen from the social view initially justifies for the necessity

of combating it through legal means

In -egard to the political aspect, bribery has been seen as a tool used for the exchangebetveen political power and property “Bribery is one of the perquisites of power and acommon coin of exchange between power and wealth” (Reisman 1979: 39) Bribes arecorsidered improper gifts given by and for the political power Via bribery, political powermates money; equally money can buy political power Bribery also shows one of thenegative effects of a political hierarchy It becomes an instrument for getting andmantaining political power as well as leading to impartiality and inequality in society.Andersson (2002: 4) argues that it reduces trust in both politicians and the system Bearing

in mind the seriousness of bribery in political area, the need to fight it by the tool ofcriminal law is obvious

From the public administration perspective, bribery is unanimously perceived as a form of

coruption In my opinion, bribery undermines the public administration, making governments of all levels become bureaucratic, slack and non-transparent It also destroys the morality, integrity, honesty and responsibility of public officials As a consequence, it

destroys the public’s trust in government and public officials The phenomenon and its

consequences are seen in much research mentioned in this study It is noted that “where

there is a systematic bribery of a number of officials it is likely that the department is badlyrun and that morale of the executive staff is low” (Van Duyne 1996: 163) Bribery tends tooccur where the government’s works lack transparency and a sense of morality The nature

of bribery viewed from this perspective explains why bribery offences are usuallycatezorized as offences violating public administration or business offences

Taking a legal approach, bribery is supposed — held all over the world — to constituteillegal acts of exchange of improper benefit Such an exchange is carried out through atwo-sided relationship On the one hand, the briber gives an improper benefit in order to

ask or require the bribe receiver to do or not do something On the other hand, the receiver

misuses his position or office to supply the giver’s demand in exchange for benefit Thenature of such an exchange is of misuse of office for obtaining an improper advantage.Bribery is supposed to be illegal due to such wrongful nature

In brief, bribery is in any perspective perceived as having an immoral, harmful andillegal nature, damaging to several values of society It is a very serious type ofcorruption Its wrongfulness easily justifies the necessity of resorting to criminal law andsevere punishments in the fight against it Bribery should be criminalized in ways that itensures its wrongfulness can be clearly identified so that people do not misunderstandwhat is behind the concept

Being the central concept in this chapter, the definition of bribery should logically beapproached first A clear and comprehensive definition of bribery is the essential startingpoint for all analyses Since the phenomenon is the subject of various sciences, the concepthas been defined differently, depending on the area in which bribery is being studied aswell as the criteria upon which it is based to be defined Reviewing the research concerningthe topic, some typical definitions of bribery were discovered

The first model for defining bribery characterizes it in a simple way, reflecting the nature

of the subject In my opinion, these may be called ‘simple definitions’ Take the definition

by Langseth as an example He defines “[b]ribery is the bestowing of a benefit in order to

unduly influence an action or decision It can be initiated by a person who seeks or solicits

bribes or by a person who offers and then pays bribes” (Langseth 2006:10) Similarly,another brief definition of bribery is given as “[b]ribery - tendering and accepting a privatereward for defection from a manifest duty” (Reisman 1979: 2) The advantage of suchdefinitions is that it describes both sides of bribery: giving and receiving of improperbenefit These two definitions can be considered general descriptions of bribery as a whole.Moreover, the concept does not limit bribery to any area or sector of social life However,the weakness of this model is that the definitions do not reflect the particular purpose ofbribery which is that it is supposed to influence the official’s exercise of duty so that thegiver will be treated with favour In addition, the feature of the bribe recipient is notexpressed Consequently, the definitions hide some important characteristics of the subject

Bribery is, due to its complex and two-sided nature, not easy to define Thus, the definition

is Sometimes given in an unusual form and this constitutes to the second model of definingthe concept Such a model results in ‘special definitions’ of bribery For instance, Green(2006: 194) gives a “framework” which he calls a “working definition” of bribery: X (abribee) is bribed by Y (a briber) if and only if: (1) X accepts, or agrees to accept,something of value from Y; (2) in exchange for X’s acting, or agreeing to act, infurtherance of some interest of Y’s; (3) by violating some duty of loyalty owed by Xarising out of X’s office, position, or involvement in some practice.” This definition lookslike a prescription of the procedure of bribery’s occurrence with all its notable elements.This adequate and rather detailed prescription reflects the relationship between a bribegiver and a bribe recipient as well as what each wants to gain from this relationship Inaddition, the key feature of the recipient’s being an office holder or position holder isincluded in the definition Such a definition also expresses both parties’ activities in abribery transaction Moreover, the definition seems to cover bribery in both the public andthe private sectors by having no limit regarding public officials and public duties.Establishing a similar definition, Senior (2006: 27) insists that,

The definition consists of five conditions that must all be satisfied simultaneously Corruptionoccurs when a corruptor (1) covertly gives (2) a favour to a corruptee or to a nominee to influence (3) action(s) that (4) benefit the corruptor or a nominee, and for which the corruptee has (5) authority.

Although this kind of definition manifests many notable factors of bribery, it still reveals ashortcoming is that it based mainly on the action of giving payment The action of

receiving payment is not presented clearly The distinguishing feature of this defmition is

that the compulsory requirement bears what the author called a “covert” condition Itrequires the action be committed covertly if it is to constitute bribery In an analysis later inthis thesis, I will show that several recent bribery practices have been committed publicly.The definition’s requirement seems not practicable

The second model of bribery definitions illustrates the point that it is difficult to build anadequate and comprehensive definition of bribery These defmitions contain weaknesses.However, they contain valuable suggestions for designing an acceptable definition as well

as for understanding the nature of bribery

Besides the mentioned models of bribery definitions, there are some different ways of

defining the concept Considering only active bribery, OECD defines bribery as “theoffering, promising, or giving something in order to influence a public official in theexecution of his/her official duties’ (OECD Observer 2000) In addition, OECDestablishes another definition which explains more about the nature of bribery “Bribery is

a specific form of corruption that can be defined as the voluntary giving of something ofvalue to influence performance of official duty either by doing something improper orfailing to do something they should do within the authority of their position” (OECDBribery Awareness Handbook) Once again the definition limits bribery to public areas Itprescribes specifically the character of the recipient and the purpose of bribery and thebribe However, the definition only approaches the supply-side and does not consider thedemand-side of the bribery relation By contrast, another definition tends to approach theconcept of bribery only through the action of receiving payment “a public official iscorrupt if he accepts money or money’s worth for doing something that he is under a duty

to do anyway, that he is under a duty not to do, or to exercise a legitimate discretion forimproper reasons” (McMullan 1961: 4)

The above definitions of bribery mainly consider the subject either in general or in the

public administration area These definitions, despite their differences of defming the

subject, reflect the wrongfulness of bribery and share many common features These will

be the background for further studies on bribery offences However, the legal aspect of the

concept has yet not been considered

Mitchell (1996: xiii) pointed out that, from the legal perspective “[b]ribery is viewed as alegal concept, with laws and regulations as interpreted by procurators and judges,determining what constitute a criminal act.” In his opinion, the concept of bribery viewedfrom the legal aspect is equivalent to the concept of bribery offence Accordingly, from thelegal point of view, bribery is always a criminal offence The ICAC of New South Wales

of Australia shares Mitchell’s view by giving a formula in its website: bribery = crime.’

Taking Mitchell’s opinion as a suggestion, I go further and study the concept of bribery ascriminal offence I would like to find different definitions of the bribery offence as grounds

” See at: http://www icac.nsw.gov.au

on which to build my own definition Reviewing studies on bribery regarding to criminal

law, I found that the concept of bribery offence is often approached as falling within theoffences of corruption (Nicholls et al 2006; Tran Céng Phan 2004), offences relating to

public position (Võ Khanh Vinh 1996; Dinh Văn Qué 2006), or business offences (Reid

2000) The definition, characteristics and elements of bribery offences are addressed anddiscussed to some extent but not always in detail Studies provide some definitions ofbribery offence that show its important features An American scholar defines bribery asthe action of offering money, goods, services, information, or anything else of value for thepurpose of influencing public officials to act in a particular way (Reid 2000: 255) In thisdefinition, the author just defines bribery from the supply-side (the briber’s activity).Therefore, that definition can be perceived as a definition of active bribery Then theauthor adds “[t]he modern concept of bribery includes the voluntary gift or receipt ofanything of value, in corrupt payment for an official act already done or to be done, or withthe corrupt intent to influence the action of a public official or any person involved withthe administration of public affairs” (Reid 2000: 255) With this addition, Reid considers

also the ‘demand-site’ role of the bribe recipient Moreover, the use of the adjective

“corrupt” is important for the expression of the wrongness of bribery activities In addition,

the definition covers an element of “voluntariness” that becomes a key factor in the

distinction between bribery and extortion This has recently become a controversial matter

in criminal law and in the application of criminal law throughout the world Reid’s

definition of bribery is understandable and comprehensive, showing clearly the nature of bribery actions, the character of the receiver and of the bribe However, this definition has

a limit as it only covers public bribery There are some similar definitions in Australianlaw At common law bribery is defined as “the receiving or offering of any undue reward

by or to any person whatsoever, in a public office, in order to influence his behaviour inoffice, and incline him to act contrary to the known rules of honesty and integrity” (Russell1964: 381) The MCCOC in addition has “bribery is offering money or other benefits topublic officials in order to influence them to depart from their public duty” (MCCOC1995: 235) The ICAC of New South Wales explains that bribery includes offering orasking for, seeking or accepting money or gifts to or by government officials to obtain a

benefit or favour, considering it a form of corruption.*

* At http://www.icac.nsw.gov.au

The above definitions of bribery concentrate on the misuse of public office for private gain

as the traditional way of defining corruption Such definitions are now receiving criticisms.The main weakness with this type of definitions is that they restrict bribery to the publicsector while it is clear that bribery can occur in the private sector too (Senior 2006: 21).The second weakness of the traditional definitions is that they do not cover situation wherethe goal of the abuse is to benefit the official’s political party, ethnic group, etc, rather thanthe official or the official’s family (Gardiner 1993: 22) | agree with these scholars on theweaknesses of the above defmitions In my opinion, the bribery offence now needs to bedefined in such a way that it takes into consideration of some of the new issues that haveansen in modern societies

Looking at a range of legislation concerning bribery and commentaries to briberyprovisions in the criminal law, I found that no definition of bribery is accepted equally inevery nation Different nations have different legal definition of bribery I also recognizedthat there is no common definition of bribery but separate definitions of separate briberyoffences in statutory law In the light of the criminal law terminology, bribery is usuallydefined by way of two defmitions of giving and receiving a bribe or the so-called “activebribery” and “passive bribery” Briefly, ‘active bribery’ usually refers to the offering or

paying of the bribe, while ‘passive bribery’ refers to the receiving of the bribe (Langseth

2006: 9) Similarly, Schwartz recognizes that bribe giving occurs when individuals seek to

have officeholders use their official powers or perform their public functions so as illegally

to advance the individuals’ private goals Bribe taking occurs when officeholders seek touse their official positions and powers so as to obtain illegal rewards from others (Schwartz2004: 185) It seems impossible to establish a common definition for both sides of bribery

in the criminal law area, since any defmition is required to express the common features ofthe concept, while the concept ‘bribery’ consists of two sides, each with differing features

In order to establish a definition of bribery offence that to a greatest extent fulfils therequirements of a comprehensive definition while overcoming the weaknesses of thedefinitions cited earlier, I see the need to go into the unique and typical features of thebribery offence in its connection with criminal law Under criminal law, bribery can berecognized by some notable features First, giving and receiving a bribe are two sides ofone phenomenon - bribery This means there are always two subjects who act in or

a‘fected by bribery, the briber and the bribed Bribery cannot exist without the supply relation between the persons in need and the power-holders The bribe giver andtke bribe recipient are required to appear in the bribery definition as prerequisites for abribery offence to be constituted Secondly, bribery can only be carried out through theuse of improper advantages and the misuse of power for the obtaining of an improperbenefit Accordingly, the mutual support between the use of undue benefit and themisuse of office is characterized a feature of bribery which needs to be recognized in anydefinition of the bribery offence Thirdly, the improper benefit or things of value to beeachanged for the misuse of office is in the common interest of both parties to thebribery affair The so-called ‘bribe’ seems to be a required element of bribery offence,since it substantiates the improperness of bribery activities Fourthly, bribery can only becemmitted through intent Intent to influence the recipient’s duties or intent to beinfluenced by the bribe is a factor that makes bribery culpable Intent should thus be asubjective requirement for the bribery offence Intent exists even in case where the bribergives bribes due to the demand from the official or the official receives bribes due topressured offer from the briber, since the briber or the bribed in question are both aware

demand-of the illegal nature demand-of their activities and still decide to act The existence demand-of an

‘influence’ factor cannot deny the existence of an ‘intent’ factor Finally, the illegality of

bribery must be established by the law In other words, the bribery offence must be

provided for in law and determined by the law, including case law Bribery as a crime canonly be punished by virtue of the principle of legality

Aiter recognizing the features of bribery from a criminal law perspective and considering

other studies on bribery, I put forward my own definition of the bribery offence as:

‘bribery offence is intentionally and illegally offering or giving, receiving or asking, or

aiding or inciting in giving or receiving things of value to or/and by position holders orauthority holders or any recommended person, in order to influence the performance of therecipient’s duties.’ The definition has some advantages over the ones cited earlier First, itextends bribery offence to activities in the private sector, because I do not limit mydefinition to the public sector Second, the definition covers both active and passivebribery as well as acting as intermediaries in bribery Further, requirements relating to suchelements as the recipient, the bribe, activities, purpose of bribery and intent, are allincluded in the definition The special feature of the recipient is manifested in the

definition The bribe is not limited to material things but can consist of intangible benefit.Finally, the requirement of the principle of legality is satisfied by my definition.

What I build here is of course a theoretical and general definition of the bribery offence as

a whole In later chapter concerning specific bribery offences under current law ofcomparative countries I will give specific and separate definitions in accordance with therespective national laws The definition above will be regarded as the basis for theoreticalanalyses of the elements of the bribery offence It will also be the theoretical frameworkfor analyzing the law and the application of the law to bribery offences

1.1.2 Prevailing Types of Bribery

Bribery is a complicated phenomenon that can occur in various areas of life in variousforms From the theoretical aspect, the identification of the prevailing types of bribery ishelpful for understanding its dangerous nature and the necessity for the criminalization ofcertain types From the practical aspect, analyses of the categories of bribery will help tosee whether the law on bribery offences criminalizes a sufficient range of types of bribery,perhaps providing some further types of bribery for criminalization In this part I focus onanalyzing the danger of each type of bribery, giving arguments for the criminalization ofcertain types The practical uses of these analyses will be seen in later parts of the thesis

Bribery can be classified according to different criteria Van Duyne (1996: 161-169) points

out six main types of corruption, based on the nature of the situations in which decisionsare taken and the working environment of the persons involved Accordingly, bribery can

in my opinion also be classified in these six ways, including (1) public sector bribery

between officials, (2) public sector/private sector bribery, (3) public sector/political

bribery, (4) private sector bribery, (5) private sector/political bribery, and (6) briberybetween politicians

The first type of bribery only occurs in the public sector and commonly aims atmaintaining or getting more powerful position, making more incomes, hiding illegalactivities, and the like Rose-Ackerman (1999: 82) also recognizes such a type of bribery,regarding it as indicating exchange relations between superior officials and lower officials.According to her, such a relation occurs with both “bottom-up” and “top-down”

dimensions From the bottom-up dimension, the lower officials receive bribes and thengive part of them to their senior official as a sign of sharing and goodwill At thebeginning, such giving is intended to make the leaders silent with regard to their junior’swrongful activities Such practices are committed systematically, and then become arequirement for employment, good positions and the like From the top-down dimension,senior officials also find it necessary to give benefits to those below them, to buy theirsilence This type of bribery is considered of the highest seriousness because “the higherthe proportion of corrupt officials, the easier it is to encounter a corrupt official, the lowerthe risk of offering a payoff, and the greater the number of individuals who expect tobenefit from paying a bribe (Ibid: 124) 1 am of the opinion that such bribery is even graverbecause it creates systematic and interactive corrupt relations that are also helpful forconcealing illegal activities or escaping from legal liability.

The second type refers to bribery exchanges between public officials or public agencies asreceivers and individuals or private corporations as givers In Van Duyne’s theory, a legalentity is also recognized as a bribe receiver “It is also conceivable that an entire publicservice unit has become corrupt by engaging in an improper exchange relationship withindividuals or firm” (Van Duyne 1996: 164) Examples of this type include the case in

which a company gives bribes to a state agency in forms of sponsors for entertainment

activities or meals, in order to obtain favours from that agency Such bribery has now

become prevalent all over the world and may be one of the most common corrupt practices

in every country I will investigate these actual bribery transactions in the context ofVietnam, Sweden and Australia in Chapter 3 for the illumination of my hypothesis I seethe need of criminalizing this type of bribery due to its harmfulness to both state’s stabilityand public interest It destroys the integrity and fairness of public officials, creatingobstacles to the performance of public functions on the one hand, and harming the interests

of the public as a whole on the other hand

The third type of bribery occurs when public officials exchange bribes with the holders ofpolitical offices They want to mutual support to make themselves more powerful andwealthier through bribery practices The danger of this can be clearly seen because it iscommitted by powerful and prestigious actors who can even change the importantinstitutions of the State It seems however very difficult to detect and punish such bribery

due to the strength of the power that creates and conceals these practices, especially in

countries where a tradition of authoritarian political regimes still prevails Criminalizationshould not consider such bribery as marginal but needs to focus on covering these types ofactors in any definition of bribery offences

Bribery in the private sector between individuals, private corporations, entrepreneurs, andthe like, may be recognized as the fourth type of bribery This type is also perceived asbusiness or commercial bribery It occurs in market economies and has been developing to

be an implicit business rule in some economies It is now accepted as a “normal” cost ofdoing business in several countries Arguments for the criminalization of bribery in theprivate sector have been made from different points of view From the administrativeaspect although it is undeniably in the public interest that the role of public bodies ismore important and the stability of the public administration should be protected to agreater degree, private bodies are also of importance Further public sector actors havebeen increasingly engaged in functions other than the exercise of public authority, i.e.tasks that are also carried out in the private sector In addition, the terms of employment

in the public and the private sector have become so similar that it is reasonable for allemployees to act under similar essential liability Reasons for the criminalization of

private sector bribery can also be derived from the economic perspective (Heine 2003:

610) analyzed the policy goals of criminalizing private bribery as being the strengthening

of public awareness regarding the giving or accepting of illegal benefits in business

matters; the sharpening of social consciousness to understand that corruption is not onlyethically unacceptable but also counter-productive; guaranteeing the integrity of therelationship between employer and employee, avoiding distortions of competition.Private bribery has undermined the fair competitiveness of economies, leading to highprices and harming the consumers’ interest I agree that these arguments sufficientlyjustify the need for the criminalization of bribery in the private sector

The fifth type is bribery between business actors and politicians This includes improperexchanges of benefit between actors with economic and political power Private companiescan give bribes (in the forms of contributions, donations, and the like) to politicians orpolitical parties for their campaigns, in order to get back “preferential treatment” frompolitical power when doing business Through this type of bribery money and political

power can be exchanged as products in a black market In my opinion such practicesconstitute bribery to gross degree of danger The danger of such a bribery type also meanslegislators must make it an offence However, this seems not to be easy in countries wherepoliticians are not covered by the concept of ‘official’.

The dast type in accordance with Van Duyne’s classification is bribery among politicians ofpolitical parties, so it is also called political bribery Sometimes politicians need supportthemselves when putting forward new policies or legislation In this type of bribery,

“Ip]ayoffs are often made to obtain legislative or regulatory favors” (Rose-Ackerman1999: 142) The danger of political bribery is hardly to be recognized, due to thecomplicated nature of the benefits exchanged It moreover depends on the political regime

of a country In my opinion there is neither basis nor the capability for proving theexistence of such bribery The possibility of criminalizing such bribery seems low

In addition, Heidenheimer (1989) classifies corruption into three categories: “blackcorruption”, “grey corruption” and “white corruption”, being based on the public attitudestowards corruption Based on his theory, bribery can also be categorized into “black”,

“grey” and “white” “Black bribery” refers to bribery activities in which the wrongfulness

can be clearly seen In other words, it is definitely immoral and its nature can be easily perceived, giving rise to public condemnation On the contrary, “white bribery” is accepted

by the public and even tolerated by some of the population It is perceived as a custom, arule or even a cultural norm “Grey bribery” is, as its name suggests, difficult to identify as

immoral It is situated in the middle between support and condemnation Due to the

difficulty of determining the wrongness of the two latter types it is not easy to condemnthem As a result, they are rarely criminalized Similar to Heidenheimer’s approach,Reisman (1979) classifies bribery into transaction bribes, variance bribes and outrightpurchases His classification is based on the “different impacts on the larger social system”

in which bribery takes place and “different degrees of lawfulness” In his theory, atransaction bribe is “payment routinely and usually impersonally made to a public official

to secure or accelerate the performance of his prescribed function” (Ibid: 69) It alsocommonly called facilitation payments or “grease money” or “speed money” These aresmal] payments made to speed up common administrative procedures (Arvis & Berenbeim2003: 9) The public seems tolerant of this type of bribery or even sometimes encourages

it Facilitation payment is of course dangerous for the operation of the state machine but is

not easily criminalized, due to the perception of its minor importance Variance briberyseems more dangerous because it is paid to secure the suspension or non-application of anorm to a case where the application would otherwise be appropriate” (Reisman1979: 75)

In other words, this is payoff in order to make the giver perform his duty differently fromwhat is required Generally, the public does not support variance bribes, thus making themeasier to condemn The last type of bribery in Reisman’s model seems rather specialamong other bribes Outright purchase is payment to buy a person who is working for anoffice or a company where he has the duty to be loyal, in order to make him act against hisoffice The payoff is buying an official who may work as an insider for a long time In thisaffair, the giver acts as the purchaser and the giver sold himself (Ibid: 88-89) Theconclusion seems to be that the transaction bribe has the least affect on society while,outright purchase is the most serious type, because it destroys social systems by way of asecret infiltration It should therefore be severely punished (Ibid: 93)

As a development of the idea, Della Porta and Vannucci (1999: 24) argue that the degree

of tolerance for illegal activities among certain social groups or within public opinion may

be a good opportunity for bribery One can perceive from the mentioned models that the

higher the tolerance of bribery, the less chance for bribery practices to be identified as

wrongful actions and criminalized Criminalization of bribery and the proper enforcementand the application of the law on bribery need to be supported by growing awareness of the

true nature of bribery I have no doubt that a high incidence of bribery is due to a high level

of tolerance of this phenomenon As has been observed in some cultures, the transactionbribe has even been regarded as general service available to the public (Reisman1979: 70-71) However, I suppose that people may even more be determined to get rid of briberypractices in countries where bribery occurs too often

Recently, there have been some controversial bribery-related practices, namely gift-giving orpayments for goodwill or for thing already done Terms commonly expressing the givenbenefits are the so-called inducements and rewards without a prior bribery agreement Thediscussions focus on the nature, the effect and the legality of these practices As mentionedabove, gift - giving has been rooted in a moral tradition, implicitly showing the giver’s respect

or love for the receiver However, this tradition is misused for improper purposes nowadays

In the first type, gifts may be given simply for setting up good relations with thereceivers Gift-giving accordingly becomes an investment for the future The giver inquestion does not require the officials to do any favour for him at the time of giving thegift But the value of gift and the frequency of giving gifts will affect the performance ofthe recipient’s official duties Preferential treatment for the giver will be unavoidable.

“Even when a gift was not explicitly offered in exchange for favors, it was believed thatthere was a possibility that it might influence an official’s judgment” (Park 1993: 65).The giver develops “goodwill” for the day when a favour is needed Due to the danger ofsuch practices, they are now considered implicit bribery or pay-off However, the danger

of such gifts is invisible even if the gift itself can be perceived The improper purposeand the influence of the giving in this regard are difficult to prove Therefore, it is rarelycriminalized as an offence

The second type of gift-giving is giving rewards for something already done There is noprior agreement between the giver and receiver about payments and things required to bedone As a result, it is thought that no influence is imposed on the performance of the duty

At first glance, it seems that nothing bad should be said about this type of gift-giving.However, it should be noted that the things already done were pursuant to the official’s

duties and by way of official power But the gifts were given to show gratitude to the official

personally For the public, this is thus also cases where private benefit gained through public

functions In addition, such behaviours may result in the official’s expecting to receive gifts while exercising official duties In other words this creates bureaucratic habit for officials If

this type of gift-giving is maintained, it will be difficult to secure such values as equality andimpartiality in public administration Some Vietnamese authors argue that gift-giving for

gratitude should be made an offence for two reasons: first, the position holder’s performance

of his public duties as an official may benefit people but they do not owe him anything and

he has no right to receive gifts from the public; second, if receiving one gift leads to acontinuous flow of gifts, the official is bound to be influenced and his integrity has been

undermined (Tran Kiém Ly and Dang Van Doan 1982: 29).

The arguments for the criminalization of these like-bribery activities are then verypersuasively made From the point of view of UK law reformers, a reward or inducementmay or may not have a tendency to corrupt, depending on the circumstances If it is made

in the hope of a mutually profitable relationship in the future, it should be considered as

corrupt activity as the act tends to encourage breaches of duty This reasoning suggests thatthe distinction is not that between rewards and inducements, but that between conductwhich does or does not tend to encourage breaches of duty Reward may sometimes berelevant to inducement Such payments would be potentially corruptive since therecollection of them is likely to influence the receiver in any future dealing with the giftgiver The corrupting quality of reward or inducement would lie not only in its possibleinfluence on the receiver’s future conduct, but also in the possibility that other agentsmight be influenced in their dealings with the giver or with others from whom they mightexpect to receive similar rewards Conduct should be regarded as corrupt if it would becorrupt for other to learn of it (UK Law Commission 1997: 75-77) From a Vietnamesepoint of view, receiving a gift of major value should be criminalized due to the obviousrisk to the integrity of the public official (Tran Céng Phan 2006) I agree with the view on

the potential risks of such gift-giving I am of the opinion that the law should set

reasonable limits for gift giving, based on the value or type of benefit that can lawfully be

received in order to avoid abusing the tradition of gift-giving In addition, acts of giving and receiving the above payments should be criminalized subject certain requirements |

will discuss the issue again in Chapter 4 of the thesis.

Through the above analyses of the prevailing types of bribery, I draw as my own

conclusion that all these types can harm the public interest and state stability and thisrequires the conduct to be criminalized However, criminalization should also be based onother circumstances such as how widespread the act is, the requirement for fighting suchacts and the probability of detection and conviction of the act In addition, the requirementfor international cooperation in the context of global integration and internationalrecommendations on serious types of payments should be taken into account when

considering what types will be criminalized For some types of bribery that contain special

features, e.g bribery in the private sector or gift-giving as corrupt practices or briberyinvolving politician, the law should provide separate offences with specific descriptions.The difference in degrees of danger between the different types of bribery obviously needs

to be considered when the law provides punishments thereupon

1.1.3 Theories concerning Bribery Offences

As mentioned above, studies on bribery vary and the phenomenon can be approached indifferent ways The theories referred to in this part mainly view bribery through thebroader concept “corruption” and only relate specifically to bribery from the point of view

of the criminal law aspect Studies on bribery criminal law in an international comparativecontext are scarce and the subject is mainly approached in domestic criminal law Myresearch mainly used the commentaries and textbooks explaining national laws For thecriminal law, the elements of bribery offences and the principles of punishing them(including penalties for such offences) are placed at the centre of the discussion

The interests protected by bribery criminal law should be considered first These would befactor reflecting the nature of bribery offences, deciding what kind of offences should becategorized as bribery Scholars seem to agree with the opinion that bribery offences destroythe trust that citizens have and should have in persons who carry out public functions Thebetrayal of trust is pointed out as the critical feature of bribery (Noonan 1984; Alatas 1999).Green develops that notion by building his disloyalty - based theory, attributing bribery tothe disloyalty of the bribe recipient to his constituents and to the ideals of his job (Green2006: 203-211) This theory seems to be illustrated by the fact that in the Constitution of the

United States bribery is provided for alongside treason.” Accordingly, the first interest

protected from the damage by bribery offences is the duty of loyalty owed by the bribed

person to his employer (the State, his principal and the like) and to his constituents In

addition, at common law bribery is considered as offence that breaks “the known rules ofhonesty and integrity” (Russell 1964: 381) Wincler (1972: 210) also condemned briberyoffences for striking at the honesty and integrity of public officials So the honesty andintegrity of officials are perceived as another protected interest that is undermined bybribery offences In fact, the French Penal Code appears to confirm that view by classing

bribery among other “breaches of the duty of honesty”.'° Briefly, these ideas have a similar

view on the interests protected by bribery criminal law However, they seem to focus onthe moral dignity of the officials In other words theory on this matter does not seem toconsider the interests of the State as interests undermined by bribery offences

” Aticle II Section 4 of the US Constitution stipulates that “The President, Vice President and all civil

Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason,Bribery ”

'° See Section III of Chapter II of Title III of Book IV of the French Penal Code

As mentioned above, bribery is commonly regarded as a type of corruption The idea thatbribery offences are among the offences of corruption seems not to have been argued forfrom an international perspective Meanwhile, in Vietnamese criminal law studies, most

authors seem to stick to the idea that only the offence of receiving a bribe is a corrupt

offence, arguing further that only this offence is required to be committed by public

position holders (Institute of Legal Science 2004, Dinh Văn Qué 2006, Trần Công Phan

2006, Hanoi Law University 2005) Unlike this notion, few researches introduce a differentpoint of view, stating that also giving a bribe and acting as a bribery intermediary areoffences of corruption, because these bribery practices are always linked to the offence ofreceiving a bribe and both activities seriously violate the stability of State agencies and

organizations (Government Ombudsmen 2004:107; Trần Anh Tuấn 2006:26) Taking a

neutral approach, another author regards giving a bribes and acting as bribery intermediary

as offences that have a direct connection with offences of corruption (Nguyễn Văn Tuấn

2006: 79) According to a Governmental agency in Vietnam, only the activities of giving abribe and acting as bribery intermediary committed by public position holders or publicauthority holders in order to develop the business of their agencies, organizations or localgovernments in a corrupt manner are considered corruption (VCLEPG 2006:15-16) I am

of the opinion that the different types of bribery offences interact themselves, all violating

the authorities of the State as well as influencing the performance of public duties for

improper gains These offences should thus all be considered corruption offences

Issues in regard to the bribe recipient have received much attention in recent studies.According to the traditional perception of Vietnamese lawyers, only persons who are publicposition holders and public authority holders are able to be bribe recipients No one seems todisagree with this idea; the question just arises who can be regarded as such persons Thepublic position holders and the public authority holders are commonly perceived as personswho are responsible for performing public duties in the State authorities or organizations and

at the time of performing their duties have certain powers or abilities in relation to otherpersons (Tran Kiém Ly and Dang Van Doan 1982:33, Dinh Van Qué 2006:78) In this view,the bribe recipient is recognized by his or her public duties Public duties or public functionsthus become a requirement of the bribe recipient Such duties or functions do make theholders powerful in relation to certain people in society It seems a correct explanation that

holding a position or having authority means that the holders can make decisions

-individually or within a group — that can considerably affect other people’s rights, making

them strongly dependent on the decision makers (Tran Kiém Ly and Dang Van Doan1982:33-34) In addition to public duties, the bribe recipient is also required to haveauthority or hold a position at the time of the offence This means that person can onlycommit receiving a bribes at the time of holding position or authority; and before obtainingthe office or after leaving it a person cannot be regarded as being capable of being a briberecipient Because the bribe recipient is the person who uses his position or authority as atool for obtaining improper benefits from the people in need, a person can only receive

bribes when he is in office or at the time of performing his duty (Tran Kiém Ly and Dang Van Doan 1982: 35, Dinh Van Qué 2006: 29-30) Further, one author argues that being a

bribe recipient also strongly depends on the nature and the scope of the duty and thefunction As a result, persons responsible for purely technical works or scientific oreducational functions, such as engineers or teachers and having no right to make decisions

affecting others cannot be the bribe recipient (Mai Xuân Binh 1996:47-54) As a Vietnamese

analyst, | find these arguments reasonable in the context of Vietnam The political and

administrative features of Vietnamese society have a great influence on such theory Ï am of the opinion that a bribe recipient needs to be determined by three requirements: first, he or

she holds a public position or carries out a public authority in an agency or an organization

by appointment, by election, by assignation or under a contract; second, he or she has theauthority to make or to exert influence on the making of decisions that may have effects on

the rights or benefits of other people or entities; and third, he or she holds the position or

authority at the time of the offence so the permanence becomes essential From my point ofview, payment and seniority are irrelevant factors in this regard Of course my argument isreasonable in the Vietnamese context To an observer, the third may seem not to berequired because in many countries it is believed that a person may have authority beforeobtaining or after leaving his position That is not the case in Vietnam

Beside theories concerning who can be the recipient, studies on bribery also discuss thedefinition and scope of bribe recipients The scope of people who may be bribed isperceived as quite broad Scholars do discover special cases in which the actors may bedifferent from the usual ones It is supposed that “bribes may be paid to individuals who